Kalik v Coles Myer Limited
[2005] NSWWCCPD 76
•25 July 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Kalik v Coles Myer Limited [2005] NSW WCC PD 76
APPELLANT: Jadranka Kalik
RESPONDENT: Coles Myer Limited
INSURER:Coles Myer Limited
FILE NUMBER: WCC12688-03
DATE OF ARBITRATOR’S DECISION: 30 April 2004
DATE OF APPEAL DECISION: 25 July 2005
SUBJECT MATTER OF DECISION: Time for lodging appeal; threshold on appeal; grounds of appeal, and failure to pursue appeal.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:25 July 2005
REPRESENTATION: Appellant: Unrepresented
Respondent: Lander & Rogers, Lawyers
ORDERS MADE ON APPEAL: Leave to appeal the decision of the Arbitrator is refused.
No order is made as to costs.
BACKGROUND TO THE APPLICATION TO APPEAL
On 2 June 2004 Jadranka Kalik, the Appellant Worker sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 30 April 2004.
The Respondent to the Appeal is Coles Myer Limited.
Ms Kalik claims that she began to experience pain on or about 14 May 2002 while working for Coles Myer Limited as a checkout operator at Manly. On 17 May 2002 she felt pain in her “right hand, arm then the right shoulder and finally the neck and back.” She obtained permission to leave her place of employment and attended the medical centre where she saw Dr Garagounis. He prescribed analgesics. She attended the surgery of Dr Guirigis, orthopaedic surgeon, on 27 May 2002, being referred by Dr Garagounis.
Ms Kalik states that she was working on light duties between July 2002 (incorrectly stated as 2000) and November 2002 (incorrectly stated as 2000), 3 days per week for 4 hours per day. She says that she was informed that there were no light duties for her on 16 January 2003. She attended a job club course for 2 months, designed to assist her to find employment. On 11 June 2003 she was sent to Woolworths where she worked for 2 days, and was unable to work 4 hours per day for 5 days per week, in accordance with the plan. Her employment with Coles Myer was terminated on 16 July 2003.
Details of Ms Kalik’s injuries are set out in her statutory declaration of 18 July 2003.
Ms Kalik has dispensed with the services of her legal representative and is unrepresented in this appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination – Consent Orders’, dated 30 April 2004 records the Arbitrator’s orders as follows:
“In this matter a teleconference was held where the parties were assisted by me, acting as
an Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their
agreement, and in accordance with Rule 75(1) of the Workers Compensation
Commission Rules 2003, the determination in this matter is as follows:
1.That the Respondent pay the Applicant $10000 pursuant to Section 66 of the Workers Compensation Act 1987 (the 1987 Act).
2.That the Respondent pay the Applicant’s medical expenses under section 60 of the 1987 Act in the sum of $810.68 on production of accounts and receipts.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.
4.That the Applicant’s claim under section 67 of the Act is dismissed.
5.The requirement to file a Notice of Discontinuance pursuant to Rule 74 is dispensed with.
The following is not a determination of the Commission, however, I note that the parties have agreed the following:
·That the applicant withdraws the claim under section 67 of the 1987 Act.
·That the parties will file an agreement under section 66A of the 1987 Act on or before 7 May 2004.”
ISSUES IN DISPUTE
The ‘Appeal Against Decision of Arbitrator’ lodged on 2 June 2004 discloses no grounds of appeal and was not accompanied by any submissions from Ms Kalik. No issues are put forward as being in dispute.
On 20 August 2004 Ms Kalik submitted medical reports from Dr Guirgis dated 2 August 2004 and Dr Garagounis, dated 20 July 2004, a handwritten note dated 22 December 2004 that she wished to proceed with this appeal, WorkCover Medical Certificate dated 14 December 2004, a medical certificate dated 5 August 2004 from Dr Peter Hakewill, and a document headed ‘Enhanced Primary Care (EPC) Program Referral Form for Allied Health Services under Medicare’ dated 20 May 2002. According to Coles Myer, none of these documents has been served on it. Ms Kalik’s explanation for providing the documents at this late stage is that she had just retrieved them from her Solicitor. All of the documents relate to medical issues that were before the Arbitrator and do not appear to be relevant to this appeal.
HEARING
Given that Ms Kalik is unrepresented arrangements were made for a conference/hearing this morning at 9am, in order to enable Ms Kalik to pursue her appeal, should she wish to do so. Ms Kalik was informed of the arrangements by telephone and in writing. She apparently agreed to attend but on 19 July 2005 she verbally informed a Commission officer that even if the hearing was set down for this morning, she may have to cancel “if something came up”. She was informed that the matter would proceed in any event.
Ms Vicki Tsimigos, Solicitor for Coles Myer Limited appeared at 9 am, as did the Interpreter in the Croation Language, whose attendance was organized by the Commission, in order to assist Ms Kalik.
Ms Kalik did not appear, and Ms Tsimigos and the Interpreter were permitted to leave at 9.50am. Several attempts were made this morning to contact Ms Kalik by telephone, but there was no response.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), which provides:
”352Appeal against decision of Commission constituted by Arbitrator
(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2)The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4)An appeal can only be made within 28 days after the making of the decision appealed against.
(5)An appeal under this section is to be by way of review of the decision appealed against.
(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The appeal was lodged on 2 June 2004, and not within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act. No explanation has been given for the late lodgment nor has any submission been made in relation to extending the time to do so. Consequently, section 352(4) is not satisfied.
Ms Kalik’s ‘Appeal Against Decision of Arbitrator’ submits that the amount of compensation at issue is $10,000 and 8% of the amount awarded on the decision appealed against. As stated at paragraph 13, at least 20% of the amount awarded of the decision appealed against must be at issue. Consequently, section 352(2)(b) is not satisfied.
Leave to appeal is refused.
EVIDENCE AND SUBMISSIONS
As indicated above, Ms Kalik filed no grounds of appeal nor any submissions in support of her appeal. From a reading of the correspondence on the file it would appear that she has concerns about her former solicitor and the assessment of the Approved Medical Specialist. No allegation of error of law, fact or discretion on the part of the Arbitrator, is asserted.
.
Ms Tsimigos, Solicitor for Coles Myer Limited indicated at the hearing this morning that payment of compensation as ordered by the Arbitrator, was made on 6 July 2004 per cheque number 7303501, and the Solicitor’s costs were paid in or about May 2004. She said that on checking with the Bank it had been ascertained that the cheque in payment of compensation has been presented. Ms Tsimigos stated that no Reply had been filed by Coles Myer Limited as there were no grounds or submissions to which a Reply could be made. It is apparent that Ms Kalik has in fact been paid the amount awarded to her by the Arbitrator, his order having been made by consent between the parties. In any event, she has failed to pursue this appeal, notwithstanding the assistance that she has been given and the ample opportunities afforded to her to do so.
DISCUSSION
On inspecting the file in this matter it is clear that the Registrar and her staff have done everything possible to assist Ms Kalik. She has been able to discuss the matter with various officers of the Commission and on more than one occasion, with the Registrar personally. Although she has some understanding of English she has been afforded the services of an interpreter at all appropriate times, at no cost to her. All assistance given to Ms Kalik has been followed up with correspondence and/or directions that have been couched in plain English, for ease of understanding and for translation into the Croatian language. It is clear that the Registrar and her staff have been very sensitive to the fact that Ms Kalik has been unrepresented and does not have a good command of the English language. The various efforts made by the Registrar and members of her staff are too numerous to list here, but all involved are certainly to be commended.
DECISION
Leave to appeal the decision of the Arbitrator is refused.
COSTS
No order is made as to costs.
Gary Byron
Deputy President
25 July 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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